Harvard Journal of Law & Public Policy articles from March 2008

Harvard Journal of Law & Public Policy archives from March 2008

The Chicago School and exclusionary conduct.
March 22, 2008... One panel is not remotely enough to discuss Robert Bork's contributions to antitrust, or even a small portion of his magnum opus, The Antitrust Paradox. (1) The essayists on this panel have carved off just a few slices. Mine is exclusionary...

Judge Bork, consumer welfare, and antitrust law.
March 22, 2008... The Sherman Antitrust Act of 1890 broadly prohibits contracts, combinations, and conspiracies in "restraint of trade" and makes it unlawful "to monopolize" any line of commerce. (1) The open-textured nature of the Act vests the judiciary with...

The Antitrust Paradox: A Policy at War with Itself.(Book review)
March 22, 2008... It is an honor to be invited to write about Judge Robert H. Bork's contributions to antitrust law. It is also a pleasure to join in paying tribute to Judge Bork's work. When I joined the faculty at Yale, Judge Bork was a colleague, though I did...

Of inkblots and originalism: historical ambiguity and the case of the Ninth Amendment.
March 22, 2008... Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, (1) the Ninth Amendment has been a flashpoint in debates over the merits of originalism as an interpretive theory. Judge Bork's comparison of interpreting the Ninth...

On the hypotheses that lie at the foundations of originalism.
March 22, 2008... Constitutional law, as taught in American law schools today, is primarily a course in religious indoctrination. Stories are told about the gods and heroes that in part convey information, but mainly shape the character of the students, teaching...

The misunderstood relationship between originalism and popular sovereignty.
March 22, 2008... Since The Tempting of America was published, (1) many originalists, seeking to justify their preference for adhering to the original meaning of the Constitution, have taken up the banner of popular sovereignty. (2) The Constitution, we are...

Render unto Caesar that which is Caesar's, and unto God that which is God's.(relationship between law, religion, and morality)
March 22, 2008... It is a great pleasure to contribute to this Symposium with such distinguished scholars as Professors Robert George and Ilya Somin, and to comment on Judge Bork's thought-provoking book, Slouching Towards Gomorrah. (1) Many of the contributors...

Slouching Towards Gomorrah: Modern Liberalism and American Decline.(Book review)
March 22, 2008... When Slouching Towards Gomorrah (1) first appeared, it bore on its dust jacket the following words of mine praising the book and its distinguished author: The ideological triumph of liberalism among American elites, far from...

The Borkean case against Robert Bork's case for censorship.
March 22, 2008... The primary purpose of this Essay is to criticize Robert Bork's advocacy of government censorship of American culture. However, I come as much to praise Judge Bork as to criticize him. To my mind, the principles advanced in his book, The...

Partial-birth abortion and the perils of constitutional common law.
March 22, 2008... INTRODUCTION I. THE "CONSTITUTIONAL" LAW GOVERNING ABORTION A. The Right of Privacy B. The Right to Abortion 1. Roe v. Wade 2. The Reaction to Roe 3. Refining Roe 4. Analyzing the Post-Roe...

Demystifying the right to exclude: of property, inviolability, and automatic injunctions.
March 22, 2008... The right to exclude has long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what an owner's right to exclude means and the forms in which this right...

A new architecture of commercial speech law.
March 22, 2008... INTRODUCTION I. THE LINGERING PROBLEM OF COMMERCIAL SPEECH--THE MEANING OF CENTRAL HUDSON II. THE CONSTITUTIONAL CASE FOR PROTECTING COMMERCIAL SPEECH A. The Value of Commercial Speech 1. The Democratic...

Judicial review of local land use decisions: lessons from RLUIPA.
March 22, 2008... This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, modern system of land use regulation. In 2000, Congress determined, first, that...

Lopez, Morrison, and Raich: federalism in the Rehnquist Court.
March 22, 2008... I. FEDERALISM: VALUABLE, BUT NOT NECESSARILY JUDICIALLY ENFORCEABLE Federalism, as distinguished from pure nationalism, is an attempt to create a form of government that has the advantages, at least in part, of both centralization and local...

The Terror Presidency: Law and Judgment Inside the Bush Administration.(Book review)
March 22, 2008... THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION. BY JACK GOLDSMITH. W.W. NORTON & COMPANY, 2007. In his book, The Terror Presidency, (1) Harvard Professor Jack Goldsmith writes about his nine months of service as head...

A "plausible" explanation of pleading standards: Bell Atlantic Corp. v. Twombly.
March 22, 2008... Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a plaintiff's complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." (1) Fifty-one years ago, in Conley v. Gibson, (2) the...

The veil of vagueness: reasonableness review in Rita v. United States.
March 22, 2008... Three years ago, in United States v. Booker, (1) a 5-4 majority of the Supreme Court held that the Sentencing Reform Act of 1984 (SRA), (2) which required federal judges to impose sentences within the Federal Sentencing Guidelines (the...

The course correction a century in the making: Leegin Creative Leather Products, Inc. v. PSKS, Inc.
March 22, 2008... Numerous sources pointed to the first full term of the Roberts Court as proof of a strong rightward tilt in the political orientation of the Supreme Court. (1) Drawing from disparate cases in areas ranging from election law (2) and free speech...